Terms and Conditions

 

The use of this Website is subject to these Terms and Conditions (inclusive of Our standard Terms and Conditions for the supply of Goods and Services, Privacy Policy, Refund Policy any other documents referred to herein) which constitutes the full agreement between You and Us.

Please read these Terms and Conditions carefully before You use the Website.

By using the Website, You indicate that You have, effective upon the date on which You have used the Website, read, accepted and agreed to be bound by these Terms and Conditions.

If You do not agree with these Terms and Conditions, You should cease using the Website immediately.

Definitions

“Agreement” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Agreement.

“We”, “Us”, “Our” or “Ourselves”” means Total Ag Parts Ltd, its successors and assigns or any person acting on behalf of and with the authority of Total Ag Parts Limited.

“You”, “Your” or “Yourself”” means any person/s (end user) being of the legal age of eighteen (18) years.

“Incidental item(s)” means goods and/or services that may be purchased or sold through this Website to be supplied and/or provided by Us to You, as specified on Our Website.

“Website” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.

“Prohibited Content” means any content on any advertising media that:

• is, or could reasonably be considered to be, in breach of the Broadcasting Act 1989; the Fair Trading Act 1986, the Consumer Guarantees Act 1993; or any other applicable law or applicable industry code; or
• contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
• is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights (including, but not limited to, the distribution of digital files or any other material in which We do not own the copyright).

“Personal Information” means any information that identifies or can be used to identify You, directly or indirectly. Examples of Personal Information include, but are not limited to, first and last name, date of birth, email address, gender, occupation, or other demographic information.

“Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Agreement, a party’s Intellectual Property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, Seller information and pricing details.

Acceptance

We reserve the right to change any of the Terms and Conditions displayed on this Website (including our Privacy Policy) at any time by notifying You through this Website that We have done so. By continuing to use this Website it shall be deemed that You agree to be bound by the amended terms and conditions as notified and posted on the Website.

If You intend to transact through this Website (i.e purchase goods and/or services) then You warrant that You are at least 18 years of age, that You have the power to enter into this Agreement and You acknowledge that this Agreement creates binding and valid legal obligations upon You.

Compliance with Laws

You represent and warrant that Your use of this Website will comply with all applicable laws and regulations (including but not limited to, EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”) and the New Zealand Privacy Policy Act 2020 (including Part II of the OECD Guidelines and as set out in Schedule 8 of the Act) or any other applicable laws.

Copyright and Trademarks

The contents of this Website are at all times the copyright or trademark property of either Ourselves, Our suppliers or linked third parties and You may not distribute, reproduce, display, publish any trademark or other content of this Website for any purpose whatsoever without the prior written approval of Us, Our suppliers or linked third parties (each as applicable). Furthermore You agree to indemnify Us against any claims, costs, damages or losses incurred by Us should You fail to comply with this clause.

Advertisers and Linked Sites

The display on Our Website of any advertiser or the provision of a link to third party Websites does not constitute Our endorsement of either the advertiser or third party provider or any of their Website content (including but not limited to, any Prohibited Content) or business practices. As We do not have any control of the content of any third party Websites, access to such Websites is at Your sole risk and We recommend that You thoroughly review the terms and conditions of use and the Privacy policies of any third party Website immediately once You access such a Website.

We shall accept no liability in regards to any dealings, promotions or activities between Yourself and advertisers or third party providers.

Specifications and Information

Specifications and information provided on this Website are given in good faith based on Our knowledge, experience, or information provided to Us by manufacturers and/or suppliers, or derived from sources believed to be accurate at the time the information is received by Us, therefore it is recommended if You have any concerns as to the suitability of Goods or Services provided through this Website in respect of the use of the Goods or Services or their suitability for a particular use that You contact Us or seek external professional opinion.

You acknowledge and accept that colours of items displayed on the Website may not reflect the true and actual colour of such items as this may be affected by external influences such as the quality of images supplied to Us for use, or the quality, age, or settings on Your monitor. If colour is a major factor in Your decision making We recommend You contact Us before purchase.

Continuous Service

Due to the inherent nature of Websites We cannot guarantee uninterrupted or continuous availability of this Website and You accept that the Website may also be unavailable from time to time for maintenance or scheduled upgrades. Where able We shall give You advanced warning of the same. We shall accept no liability in relation to Website downtime whether scheduled or otherwise.

Termination of Use

These terms and Your access to Our Website may be terminated by Us (at Our sole discretion) at any time without notice or any requirement to give You a reason why. In the event of termination under this clause We shall have no liability to You whatsoever (including for any consequential or direct loss You may suffer).

Jurisdiction

This Website (excluding any linked third party sites) is controlled by Us from Our principal business premises in New Zealand. Our servers are located in New Zealand so Your information may be transferred to, stored, or processed in Total Diesel Services Limited. It can be accessed from countries around the world to the extent permitted by the Website. As each country has laws that may differ from New Zealand, by accessing this Website, You agree that the laws and statutes of New Zealand shall apply to any dealings, actions or claims arising out of, or in relation to, this agreement, or Your use of this Website, irrespective of any conflict with any laws and statutes applicable to Your country of domicile.

In addition, We or Our subcontractors may use cloud technology to store or process Personal Information, which may result in storage of data outside New Zealand. It is not practicable for Us to specify in advance which country will have jurisdiction over this type of offshore activity. All of Our subcontractors, however, are required to comply with the New Zealand Privacy Act in relation to the transfer or storage of Personal Information overseas.

You further acknowledge and agree that the filing of a claim against Us (if any) must be made in New Zealand in which Our principal business premises in New Zealand is domiciled, and that any legal proceedings will be conducted in English.

We make no representation that Goods or Services offered through this Website are appropriate, available, or suitable for use in countries outside of New Zealand, and accessing any material or content from, or through, this Website which is illegal in Your country of domicile is strictly prohibited.

International Deliveries

We reserve the right to withhold delivery to any country outside of New Zealand. Estimating freight costs of large or heavy items for international transport is difficult and if the amount estimated and charged to the You varies significantly from the actual cost to Us, we reserve the right to cancel the order and refund You in full where payment has been received by Us. We may refuse to fulfill a purchase to Canada and the United States of America. In this situation You will be advised promptly and a full refund will immediately be given.

Delivery timeframes for International orders will be as specified by the shipping company selected, but standard time frames are between two days and three weeks depending on global location and freight service used.

We encourage You to get in touch for specifics regarding Your situation.

General

The failure by either contracting party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.

We shall be under no liability whatsoever to You for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by You arising out of a breach by Us of these terms and conditions (alternatively Our liability shall be limited to damages which under no circumstances shall exceed the Fee of the Services).

Feedback: Feedback is provided for the purpose of facilitating trading by You on Our Website. Feedback provided on other parties must not contain offensive, defamatory, retaliatory, or inappropriate language or content. We may remove any feedback that is considered to be offensive, defamatory, retaliatory or inappropriate.

You may only give feedback that relates to a specific transaction. You must not post feedback on a transaction that does not relate to that specific transaction.

You must not post feedback about Yourself or include any contact details or Personal Information in Your feedback.

Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, or other event beyond the reasonable control of either party.

Terms of Trade

1. Definitions
2. “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
   • “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Supplier to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
     • if there is more than one Customer, is a reference to each Customer jointly and severally; and
     • if the Customer is a partnership, it shall bind each partner jointly and severally; and
     • if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
     • includes the Customer’s executors, administrators, successors and permitted assigns.
   • “Goods” means all Goods (including, but not limited to, used parts, second hand tractors, engines, loaders etc.,) or Services supplied by the Supplier to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
   • “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between the Supplier and the Customer in accordance with clause 5
   • “Supplier” means Total Diesel Services Limited, its successors and assigns.
2. Acceptance
   • The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
   • In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
   • Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
   • The Customer acknowledges and accepts that:
     • the supply of Goods on credit shall not take effect until the Customer has completed a credit application with the Supplier and it has been approved with a credit limit established for the account;
     • in the event that the supply of Goods requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery; and
     • the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, the Supplier reserves the right to substitute comparable Goods (or components of the Goods) and vary the Price as per clause 2. In all such cases the Supplier will notify the Customer in advance of any such substitution and reserves the right to place the Customer’s order and/or Services on hold until such time as the Supplier and the Customer agree to such changes.
   • Any advice, recommendation, information or assistance provided by the Supplier in relation to the Goods or Services supplied is given in good faith to the Customer, or the Customer’s agent and is based on the Supplier’s own knowledge and experience and shall be accepted without liability on the part of the Supplier.
   • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
   • The Customer acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
     • resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this Contract; and/or
     • contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Services.
   • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of the Supplier; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

4. Change in Control
   • The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.

5. Price and Payment
   • At the Supplier’s sole discretion the Price shall be either:
     • as indicated on any invoice provided by the Supplier to the Customer; or
     • the Supplier’s quoted Price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
   • The Supplier reserves the right to change the Price:
   • if a variation to the Goods which are to be supplied is requested; or
   • in the event of increases to the Supplier in the cost of labour or materials (including, but not limited to, overseas transactions that may increase, as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges, etc.) which are beyond the Supplier’s control.
   • Variations will be charged for on the basis of the Supplier’s quotation, and will be advised in writing. The Customer shall be required to respond to any variation submitted by the Supplier within two (2) working days. Failure to do so will entitle the Supplier to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
   • on Delivery of the Goods;
   • before Delivery of the Goods;
   • for certain approved Customers, due twenty (20) days following the end of the month in which the invoice is dated; or
   • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Supplier.
   • Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:
   • Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and the Supplier.
   • The Supplier may in its discretion allocate any payment received from the Customer towards any invoice that the Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of the Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
   • The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
   • Further to clause 7, any agreements the Customer enters into with a third party shall not entitle the Customer to withhold payment to the Supplier even if the third party has not subsequently paid the Customer. All references herein to loss or damage shall be deemed to exclude loss or damage sustained by any third party in respect of which the Customer is liable and responsible (as between the Customer and the third party) whether by statute, contract tort or otherwise.
   • Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

6. Delivery of Goods
   • Delivery (“Delivery”) of the Goods is taken to occur at the time that:
     • the Customer or the Customer’s nominated carrier takes possession of the Goods at the Supplier’s address; or
     • the Supplier (or the Supplier’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
   • At the Supplier’s sole discretion the cost of Delivery is in addition to the Price.
   • Any time specified by the Supplier for Delivery of the Goods is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Supplier is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.

7. Risk
   • Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
   • If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
   • If the Customer requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
   • The Customer acknowledges and accepts that Goods supplied may:
     • exhibit variations in shade, colour, texture, surface, and finish, and may fade or change colour over time. The Supplier will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur;
     • expand, contract or distort as a result of exposure to heat, cold, weather;
     • mark or stain if exposed to certain substances; and
     • be damaged or disfigured by impact or scratching.

8. Access
   • The Customer shall ensure that the Supplier has clear and free access to the site at all times to enable them to undertake the Delivery of the Goods. The Supplier shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Supplier.

9. Compliance with Laws
   • The Supplier and the Customer shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods.

10. Title
    • The Supplier and the Customer agree that ownership of the Goods shall not pass until:
      • the Customer has paid the Supplier all amounts owing to the Supplier; and
      • the Customer has met all of its other obligations to the Supplier.
    • Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
    • It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 1:
    • the Customer is only a bailee of the Goods and must return the Goods to the Supplier on request;
    • the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
    • the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;
    • the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs;
    • the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods;
    • the Supplier may recover possession of any Goods in transit whether or not Delivery has occurred;
    • the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier; and
    • the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

11. Personal Property Securities Act 1999 (“PPSA”)
    • Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
      • these terms and conditions constitute a security agreement for the purposes of the PPSA; and
      • a security interest is taken in all Goods that have previously been supplied and that will be supplied in the future by the Supplier to the Customer, and the proceeds from such Goods as listed by the Supplier to the Customer in invoices rendered from time to time.
    • The Customer undertakes to:
    • sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
    • indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
    • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of the Supplier; and
    • immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
    • The Supplier and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    • The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
    • Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    • The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 1 to 11.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 11), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

12. Security and Charge
    • In consideration of the Supplier agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
    • The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
    • The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Customer’s behalf.

13. Defects and Returns
    • The Customer shall inspect the Goods on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Supplier an opportunity to inspect the Goods within a reasonable time following Delivery if the Customer believes the Goods are defective in any way. If the Customer fails to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Supplier has agreed in writing that the Customer is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Goods or repairing the Goods.
    • Goods will not be accepted for return other than in accordance with 1 above, and provided that:
      • the Supplier has agreed in writing to accept the return of the Goods; and
      • procured goods are not returnable; and
      • any other goods (items) where the Supplier has advised at the time of order/sale that the item is not returnable; and
      • electrical parts are not returnable once the packaging has been opened and/or the part has been fitted to a machine; and
      • the Goods are returned at the Customer’s cost within fourteen (14) days of the Delivery date; and
      • the Supplier will not be liable for Goods which have not been stored or used in a proper manner; and
      • the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition.
    • The Supplier may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Goods plus any freight.
    • At the Supplier’s sole discretion and in accordance with clause 1, the Supplier may accept or decline the return of used parts for reason of the time that may be spent in removing the part from the tractor. Should a used part be accepted for return the Supplier shall be entitled to charge a handling fee and labour costs which shall be borne by the Customer.
    • If the Supplier agrees to supply Goods outside of New Zealand, please note that the process to return faulty or defective goods may be extended and may not be satisfactory to the Customer despite our best efforts due to freight limitations.  This clause regarding deliveries and returns from outside of New Zealand takes precedence over all other sub-clauses in 13. Defects and Returns. We encourage you to get in contact with Us for specifics in the Customer’s situation.

14. Warranty
    • The Customer acknowledges and accepts that any Goods damaged during fitting or installation by the Customer, the Customer’s mechanic or any third party the Customer has contracted to fit the part, will be void of any warranty.
    • For Goods not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods. The Supplier offers a further three (3) month extension on the manufacturers warranty.
    • In the case of used parts, the Customer acknowledges that it is the Customer’s responsibility to inspect the used parts on delivery. On installation or use of the used parts by the Customer shall constitute that the Customer has inspected the used parts and is satisfied with the used parts and accepts the same with all faults and that no warranty is given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Supplier shall not be responsible for any loss or damage to the used parts, or caused by the used parts, or any part thereof however arising.
    • In respect of “Hydraulic Pumps”, the warranty offered in respect of Hydraulic Pumps and subject to the conditions of warranty set out in clause 5 and 14.6 the Supplier warrants that if any defect in any Hydraulic Pumps provided by the Supplier becomes apparent and is reported to the Supplier within the warranty period stated in the standard manufacturer’s warranty and/or on the Supplier’s extended warranty of three (3) months (time being of the essence) then the Supplier will either (at the Supplier’s sole discretion) replace or remedy the defect.
    • The conditions applicable to the warranty given by clause 4 are:
      • the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
        • failure on the part of the Customer to properly maintain the Hydraulic Pump; or
        • failure on the part of the Customer to follow any instructions or guidelines provided by the Supplier; or
        • any use of the Hydraulic Pump otherwise than for any application specified on a quote or order form; or
        • the continued use of any Hydraulic Pump after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
        • fair wear and tear, any accident or act of God.
      • in respect of all claims the Supplier shall not be liable to compensate the Customer for any delay in either replacing or in properly assessing the Customer’s claim.
    • Further to clause 5 no warranty will be offered by the Supplier where the Customer fails to adhere to the Supplier’s installation procedures being that:
    • all Hydraulic Pumps must be fitted by a qualified tractor mechanic;
    • new hydraulic oil must be fitted with the new pump;
    • new hydraulic filter/suction filter must be fitted;
    • the transmission casing/sump must be thoroughly clean so that the return flow from the new pump does not disturb any debris/thereby sucking contamination back into the Hydraulic Pump and therefore causing damage;
    • prior to fitting the Hydraulic Pump, the main relief valve should be slackened off the normal operation pressure;
    • after fitting the new pump to the hydraulic system, the pressure must be tested and included in the report, together with the mechanic’s signature.
    • The Customer acknowledges and agrees that the Supplier will not accept any claims whatsoever after the Hydraulic Pump has been fitted, all tests have been carried out and the Customer is satisfied the the Hydraulic Pump is working properly.
    • In the event that the Customer does not wish to adhere to the Supplier’s installation procedures as stated in clauses 6(a) to 14.6(f) the Customer is requested to return the Hydraulic Pump to the Supplier and the Supplier shall refund the Customer any monies paid and provided that all other conditions for return have been met. Any such returns will only apply if the Hydraulic Pump has not been fitted to the Customer’s machine or tractor.

15. Consumer Guarantees Act 1993
    • If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Goods by the Supplier to the Customer.

16. Intellectual Property
    • Where the Supplier has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Supplier. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Supplier.
    • The Customer agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, photographs or Goods which the Supplier has created for the Customer.

17. Default and Consequences of Default
    • Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonour fees).
    • Further to any other rights or remedies the Supplier may have under this Contract, if a Customer has made payment to the Supplier, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
    • Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
      • any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment when it falls due;
      • the Customer has exceeded any applicable credit limit provided by the Supplier;
      • the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

18. Cancellation
    • Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Goods to the Customer. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
    • The Supplier may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any money paid by the Customer for the Goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • Cancellation of orders for Goods made to the Customer’s specifications, or for procured goods, will definitely not be accepted once production has commenced, or an order has been placed.
19. PCI Compliance
    Payments on this site are processed by Windcave who are PCI Compliant. New Zealand certification can be viewed here: https://www.windcave.com/Document/Windcave_NZ_PCI_Cert.pdf.  More detail on Windcave compliance proicess can be found here: https://www.windcave.com/certifications-and-compliance.